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Moral Rights and the Google Books Case

On April 18 I attended a symposium at the Library of Congress (one of the perks of living and working in the Baltimore/DC area) called “Examining Moral Rights in the United States.” The content of the symposium likely had little relevance to readers of this site: moral rights (which, briefly, are a set of rights including the right of attribution which allow authors to control their works even if they no longer own the copyright to them; here’s a primer) are common in civil law jurisdictions like the European Union, but have never been very prominent in the United States. What was interesting was being in a room filled with artists and lawyers on the day that the Supreme Court declined to hear Authors Guild v. Google (aka “the Google Books case”), effectively ending the case.

In academia, this news was universally greeted with full-throated acclaim; the reaction in the Montpelier Room of the Madison Building was decidedly more mixed. In a session called “The Importance of Moral Rights to Authors,” for instance, former Authors Guild president Scott Turow noted that the authors represented in the suit were never comfortable with the idea that a massive corporation could decide to copy their works verbatim and use them to their advantage without ever having to consult the individual creators they were profiting from. Academics, who tend to emphasize the case’s ramifications for library digitization projects, rarely acknowledge this concern.

When considering the different reactions that these communities tend to have to things like this and the GSU appeal handed down last month, it occurs to me that what we have here is a difference in emphasis. Academics interpret the Copyright Clause of the Constitution as empowering Congress to promote the progress of science and useful arts: Google Books, by making scholarly and creative works more discoverable, is in their minds clearly accomplishing this purpose.

The authors represented by Turow would place the italics two words earlier: the Constitution empowers Congress to promote the progress of science and useful arts. The best way to do this is by identifying and removing barriers to original creation. Google Books, to their mind, is precisely this sort of barrier: whatever societal benefits it provides are offset by the fact that if a would-be author knows that a deep-pocketed company can use their work to promote its business without ever paying them a dime or even asking them permission, they might well decide not to go to the trouble of writing anything in the first place.

As another example, take this Polygraph project called “Film Dialogue from 2,000 Screenplays, Broken Down by Gender and Age,” which Nancy Sims recently called “an awesome application of fair use.” To an academic, this is a perfect an example of adding value to a work, and regardless of whether or not the use is “transformative” (the terms in which contemporary fair use cases are generally argued and decided), it seems about as pure an example of promoting progress in the arts as you could ever hope to find. When I look at the site through the lens of Turow’s argument about the Google Books case, though, I begin to see how even this could be seen as problematic: “you’re telling me that someone is allowed to make a verbatim copy of my screenplay, which is supposedly my exclusive right, so that they can put it into a database that has the sole intent of proving that I’m gender-biased? All without asking my permission or compensating me for the damage this will cause to my reputation?”

None of this necessarily matters from a legal point-of-view: by refusing the hear the Google Books case, the Supreme Court has tacitly accepted an expansive definition of transformativeness that would easily seem to encompass Polygraph’s “Film Dialogue” website, and would quite possibly be robust enough to extend protection to the kind of electronic media reserves service I wrote about in my post about the GSU appeal as well. This is, as such, the best framework for designing and defending such activities. It is, however, potentially a good thing for academics to keep in mind when engaging content creators in direct conversation about how they can work together without resorting to litigation.